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Madhya Pradesh High Court · body

2012 DIGILAW 255 (MP)

Narayan v. State of M. P.

2012-02-29

S.N.AGGARWAL

body2012
JUDGMENT : 1. This appeal under Section 374 of Cr.P.C. is filed by the appellants aggrieved by their conviction under Sections 363 and 366 of IPC by the trial Court vide its impugned judgment dated 15th October, 1997 in Sessions Trial No.142/96. 2. Briefly stated the case of the prosecution against the appellants was that the appellants had kidnapped the daughter of the complainant (PW-4) Ganpatlal from near the well near to her house on 28th February, 1996 around 8 a.m. The first information report (Ex.P/5) of the crime was got registered by the father of the victim girl at police Station Malhargarh, Distt. Mandsaur at 11.15 a.m. on 28th February, 1996. The names of the appellants being the accused persons, who had allegedly kidnapped the victim girl, were named in the FIR. Even the names of three persons who had allegedly witnessed the kidnapping were also named in the FIR. As per the FIR, the victim girl was removed from the lawful custody of her parents by the appellants in a jeep. She was recovered from the possession of two of the appellants, namely appellants Narayan and Bhawarlal, while found sitting with them on Namli Road in the morning around 5 a.m. on the next day i.e. 29th February, 1996. After completion of investigation, the appellants were charged, tried and convicted under Section 363 and 366 of IPC and were sentenced to undergo R.I. for 5 years each separately for their conviction under Sections 363 and 366 of IPC besides fine of Rs.1,000/- each with default stipulation. 3. After completion of investigation, the appellants were charged, tried and convicted under Section 363 and 366 of IPC and were sentenced to undergo R.I. for 5 years each separately for their conviction under Sections 363 and 366 of IPC besides fine of Rs.1,000/- each with default stipulation. 3. The learned counsel appearing on behalf of the appellants has argued that the impugned conviction of the appellants cannot be sustained in law and in support of his arguments, he has primarily relied upon the following facts which are not disputed by learned Public Prosecutor appearing on behalf of the respondent/State : (i) The victim girl was reportedly found missing from her house around 8 a.m. on 28th February, 1996 and the information about her kidnapping was given by her father to the police at 11.15 a.m. on 28th February, 1996 vide crime No.27/1996 (Ex.P/5); (ii) the site plan (Ex.D/1) of occurrence was prepared by the I.O. at 1600 hours on 28th February, 1996 which bears the signatures of victim girl also; (iii) (PW1) Constable Laxmi Rathore, who is a witness to the recovery memo of victim girl, has deposed in her evidence that the victim girl was recovered from the possession of two of the appellants at 8 p.m. on 28th February, 1996 itself; (iv) the recovery memo of the victim girl (Ex.P/1) shows the recovery of the victim girl on 29th February, 1996 at 5 a.m. Relying upon the above glaring infirmities in the case of prosecution, learned counsel for the appellants has argued that in case the victim girl was kidnapped from lawful custody of her parents around 8 a.m. on 28th February, 1996 as alleged in the FIR and if she was recovered from the possession of two of the appellants on the next date at 5 a.m., then how could the site plan (Ex.D/1), which was prepared at 4 p.m. on 28th February, 1996, bear the signatures of victim girl. The learned counsel further contended that as per recovery memo (Ex.P/1), the recovery of the victim girl is shown to have been made at 5 a.m. on 29th February, 1996, whereas according to (PW-1) Constable Laxmi Rathore, who was one of the witness of the recovery memo, the victim girl had already been recovered at 8 p.m. on the previous day i.e. 28th February, 1996. The learned counsel has further argued that the jeep, knife and pistol allegedly used by the appellants in the crime were not seized by the police. It is further submitted that Shri Mangilal, who was an independent witness to the recovery of victim girl as per the recovery memo (Ex.P/1), was an important witness and his non-examination by the prosecution creates serious doubts on kidnapping as well as recovery of the victim girl. A perusal of the FIR (Ex.P/5) would show that the complainant has mentioned the names of three persons, namely Parasmal Bawari, Sarpanch Bhawar Singh and Bhawarlal Bawari who had allegedly witnessed the kidnapping of his daughter and out of these three persons, the prosecution has examined only one of them, namely Sarpanch Bhawar Singh as PW-7 and he has not at all supported the case of prosecution. There is nothing in the evidence of PW-7 to suggest the alleged kidnapping by any of the appellants. Do all these facts not cast a serious doubt on the case of prosecution ? Answer to the same is obviously yes. It shall be significant to mention that learned Public Prosecutor appearing on behalf of the State could not give any satisfactory explanation to remove the doubts with regard to the above infirmities noticed by this Court except half heartedly supporting the reasonings of the trial Court contained in the impugned judgment. It is evident from the record that the prosecution has miserably failed to establish the guilt of the appellants beyond reasonable doubt and in the opinion of this Court, learned trial Court has completely overlooked all the above mentioned glaring infirmities in the case of prosecution. Under the circumstances, the impugned judgment of the trial Court cannot be sustained in law and is hereby set aside. This appeal is accepted. The appellants are acquitted by giving them benefit of doubt. Their bail bonds are discharged. The fine, if any, deposited by them, be returned to them.